Duty of care

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To recover damages in negligence, a plaintiff must firstly establish that the defendant owed him a duty of care. In broad terms, a duty of care exists when there is a sort of a 'relationship' or a proximity between the defendant and the plaintiff. To establish a duty of care, the test is one of reasonable foreseeability:

  • A defendant will owe a duty of care to a plaintiff where it is reasonably foreseeable that his act or omission act might harm the plaintiff.[1]

There are also some common categories of relationships in which a duty of care is automatically owed:

  • A commercial relationship between the parties (such as a contractual relationship or an undertaking).[2]
  • A special relationship between the parties (such as that between parent and child).
  • An undertaking by the defendant to do something for the plaintiff.

This article is a topic within the subject Torts.

Contents

Required Reading

Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 159-164 [7.05-7.20]; 207-210 [7.140-7.160].

Introduction

[3] Negligence is comprised of three primary elements:

  1. The defendant must have owed the plaintiff a duty of care.
  2. that duty must have been breached.
  3. that breach must have caused damage to the plaintiff.

Since it is an action 'on the case' (from the LAWS1052 - Introducing Law & Justice topic), the relief available is damages. In NSW, the laws regarding the duty of care are described in the Civil Liability Act 2002 (NSW). See s5B for general principles.

Thus, to recover damages in negligence, a plaintiff must firstly establish that the defendant owed him a duty of care. A duty of care usually arises where there is:

  • An affirmative act or omission by the defendant where it is reasonably foreseeable that the act might harm others (such as digging a ditch or throwing a stone).
  • A commercial relationship between the parties (such as a contractual relationship or an undertaking).[4]
  • A special relationship between the parties (such as that between parent and child).
  • An undertaking by the defendant to do something.

The birth of modern negligence

[5] The modern definition of the tort of negligence arises out of the case of Donoghue v Stevenson. Before that, the doctrine of privity entailed that the relationship between a manufacturer and consumer was too remote to establish a duty of care. There was no cause of action for negligent performance for anyone but a party to the contract. Therefore, a consumer which bought indirectly from the manufacturer (namely, from a cafe), could not have sued the manufacturer. The leading precedent for this was Winterbottom v Wright.

However, Donoghue v Stevenson changed this by creating the principle of 'product liability':

  • A duty of care can exist even without a contract, or without proximity of the parties.
  • Sets up reasonable foreseeability as the cornerstone of negligence:
    • 'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour'.[6]
    • 'Who, then, in law is my neighbour?...Persons who are closely and directly affected by my act that i ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question'.[7]
  • In the supply of goods, it is limited to situation where it is both obvious that the goods will be 'used immediately' or 'used at once before a reasonable opportunity of inspection', and also, where the nature of the goods means that they will probably cause harm if they are in bad condition.[8]
  • Thus, a manufacturer has a duty of care to the ultimate consumer if neither the consumer nor the distributors he received the product from had a reasonable chance to inspect it.

Since then, 'general principles' have developed for when a duty of care is present (for example, it is now a general principle that teachers owe a duty of care to their students).

Acts or omissions

[9] It is much easier to prove a duty of care exists for an act (that is, a defendant carried out an act wrongfully) than for an omission of an act (a defendant neglected to perform a reasonable act).

Reasonable foreseeability

see article: Reasonable foreseeability

Reasonable forseeability is the most important part of negligence.

In order to establish a duty of care (and especially in the absence of a special or commercial relationship), it is almost always necessary to establish reasonable foreseeability. Basically, the question is whether it is reasonably foreseeable that your action might bring harm to another. This can be defined as follows:

  • An event is reasonably foreseeable if the defendant's action increases the likelihood of the event; and
  • Harm is reasonably foreseeable if there is a systematic relationship between the defendant's action and the plaintiff's harm.

Reasonable foreseeability is a major limitation on negligence, put in place to make sure not just anyone can sue. The test of 'reasonable foreseeability' has been discussed in many cases, one of which is Chapman v Hearse:

  • Reasonable foreseeability doesn't mean that the exact sequence was probable. Rather, a consequence of the same general character or if the accident is of a class that might well be anticipated.[10]
  • In this case, the general consequence or the type of harm (someone being run over) was a reasonably foreseeable result of the act (driving negligently).
  • Also establishes the idea that an intervening act does not cut off liability as long as the intervening act was a reasonably foreseeable result of the original act.

However, there are also many cases where the consequence was completely unforeseeable, and therefore the plaintiff could not recover damages. This is called an unforeseeable plaintiff. Examples include:

Special categories

There are certain circumstances in which more than mere reasonable foreseeability is required to establish a duty of care. They include:

End

This is the end of this topic. Click here to go back to the main subject page for Torts.

References

Textbook refers to Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009).

CLA refers to Civil Liability Act 2002 (NSW)

  1. CLA, s 5B (1) (a), Donoghue v Stevenson [1932] AC 562, 580.
  2. French v QBE
  3. Textbook, p. 159 [7.05]
  4. French v QBE - case with the taxi driver who dropped his passenger off without phoning an emergency service and the passenger walked into oncoming traffic.
  5. Textbook, p. 159-60 [7.05].
  6. [1932] AC 562, 580.
  7. [1932] AC 562, 580.
  8. [1932] AC 562, 581.
  9. Textbook, p. 164 [7.20].
  10. (1961)106 CLR 112, 120.
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